Drugs, Religion, and Law
Law on many levels regulates access to drugs, complicating any incorporation of an interdicted substance within religious ceremonies. Arguments to obtain that liberty implicate issues on at least three levels. Drug restrictions exist on federal and state levels, and thus the religiously motivated drug users must confront the impediments at both levels
Previously, an obvious source of support would have been the free exercise clause of the Constitution’s First Amendment. As explained later, after the ruling in Employment Div., Dept. of Human Resources of Oregon v. Smith (II), 494 U.S. 872 (1990), that line of reasoning today offers little solace. The best option remains explicit legislative exemptions for the religious use of drugs, specifically (for example, the American Indian Religious Freedom Act) or through the judicial interpretation of more general statutes that command respect for religious practices.
Free Exercise Protections of Religious Practices
Religious liberty in the United States has never been absolute, despite its place as a preferred liberty in law and in the national imagination. The limited scope of the protection of religion was driven home during the anti-Mormon hysteria of the late nineteenth century and the line of polygamy cases that began with Reynolds v. U.S., 98 U.S. 145 (1878). Reynolds announced a belief/action dichotomy, holding that the former was absolutely protected, but the latter was not. The government remained ‘‘free to reach’’ actions ‘‘in violation of social duties or subversive of good order,’’ regardless of any religious command.
Thereafter, it would become a matter of dispute about which religious practices the state needed to allow, by refraining from passing some laws altogether or by granting exemptions from general laws that would otherwise conflict with religious beliefs and practices. Cases would address whether the state’s justification for any imposed burden need be only rational, or compelling, for interfering with this First Amendment right.
On no topic has this context been more enduring than the use of drugs within religious ritual. Although the conflict could arise, at least in theory, over any controlled substance, sustained litigation has primarily targeted peyote and marijuana.
The Peyote Cases
Peyote use is regulated by federal and state governments, requiring the religiously motivated person wishing to ingest peyote to seek exemption from both. One such group that occasionally incorporates peyote use into its ritual practices is the Native American Church (NAC). Although peyote is a controlled substance under federal law, since 1971 the Church has been granted an exemption (21 C.F.R. 1307.31). Lingering issues concern peyote use by persons who are not members of the NAC and peyote use that is illegal under state laws that do not grant an exemption similar to the federal regulations. For example, in Peyote Way Church of God, Inc., v. Thornburgh, 922 F.2d 1210 (5th Cir., 1991), it was unsuccessfully argued that limiting the peyote exemption to only one religion violated the Establishment Clause. Courts have also been unwilling to allow peyote use by NAC members who are not Native Americans (U.S. v. Warner, 595 F.Supp. 595, D.C.N.D., 1984).
Although some states had offered religious exemptions for peyote use—most notably in People v. Woody, 394 P.2d 813 (Cal. 1964)—many did not. The illegality of religious peyote in Oregon occasioned the litigation of Employment Div. v. Smith (II), which held that the free exercise clause alone does not require exemption from a generally applicable law, including those proscribing a certain class of drugs. As part of the reaction against this drastic curtailment of religious freedom, Congress enacted Public Law 103- 344 (108 Stat. 3125, October 6, 1994), which amended the American Indian Religious Freedom Act to grant a religious exemption for peyote at state and federal levels. Significantly, this new exemption is not limited only to the Native American Church, but extends to peyote use ‘‘by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion.’’
On the surface, marijuana might appear to offer many of the same features as peyote: traditional use of a proscribed substance by an identifiable religious and ethnic minority, Rastafarians. Thus far that analogy has not succeeded. State v. McBride, 955 P.2d 133 (Kan. 1998), ruled that Rastafarians are not ‘‘similarly situated’’ to Native Americans because: ‘‘(1) Peyote is consumed by the NAC members only at specific and infrequent religious ceremonies, whereas Rastafarians may consume marijuana in any quantity at any time; (2) peyote generally is not abused at the same rate as marijuana; and (3) the Kansas and federal NAC exemptions were passed under the ambit of the federal trust responsibility, which seeks to preserve the cultural and political integrity of Native American tribes.’’
The third prong particularly, should it continue to be relevant, would permanently prevent the peyote exemption from serving as a precedent for the creation of a religious exemption of any other controlled substances. Other religious groups less favorably situated have also failed in their claims for religious marijuana use, including Hindus (Leary v. U.S., 383 F.2d 851, 5th Cir., 1967), Black Muslims (U.S. v. Spears, 443 F.2d 895, 5th Cir., 1971), and members of the Ethiopian Zion Copic Church (Olsen v. Drug Enforcement Admin., 878 F.2d 1458, D.C.C., 1989).
As an alternative to explaining why drug-ingestion rituals fall outside the protections of the Free Exercise Clause, courts have occasionally attempted to circumvent the religious liberty claim altogether by denying that the practice at issue qualifies as ‘‘religious’’ in the constitutional context. For example, in U.S. v. Koch, 288 F.Supp. 439 (D.C.D.C. 1968), the federal district court denied the use of LSD (lysergic acid diethylamide) by the Neo-American Church in part because the organization failed to satisfy the judges that it was a genuine religion. Yet, even when that hurdle is surmounted, if it can be shown that other adherents freely practice the religion without resort to the illegal drug, the ritual may fail to qualify as ‘‘intrinsic’’ to the faith, minimizing the burden imposed by a ban on its use.
The lessons from this thick body of jurisprudence are fairly straightforward. At the federal level, the likelihood of winning a free exercise claim to use a controlled substance in religious rituals is minute. This tactic rarely succeeded in the best-case scenario—peyote use by Native Americans—and was categorically rejected by the U.S. Supreme Court. While the special relationship between Native Americans and the federal government secured for them a legislative exemption, no other group can count on similar largesse.
In contexts in which a Balancing Test will still be applied, the state’s interest in controlling access to mind-altering substances can be expected to continue to be deemed compelling. This interest will trump any burden on the religious practice inflicted by an inability to perform its sacred rituals.
Nonetheless, this area of the law continually evolves, as religious organizations initiate further suits in hopes of securing a right to worship in their chosen manner. Most recently, the Supreme Court has agreed to hear Gonzales v. Centro Espirita Beneficiente Uniao do Vegetal, 389 F.3d 973 (10th Cir. 2004), cert. granted Apr. 18, 2005, to decide whether the Religious Freedom Restoration Act of 1993 should allow the church access to hoasca, an hallucinogenic tea. As one line of argument is closed, new ones may be asserted, such as Renteln’s (2004) argument that criminalizing substances unfamiliar to our culture under an unproven presumption that they are necessarily harmful can violate the right to culture recognized in international law. These efforts represent an ongoing effort to forge a balance between the well-intentioned secular needs of society and the religious spirit of its multicultural citizens.
JAMES M. DONOVAN
References and Further Reading
- Epps, Garrett. To an Unknown God: Religious Freedom on Trial. New York: St. Martin’s Press, 2001.
- Long, Carolyn N. Religious Freedom and Indian Rights. Lawrence: University Press of Kansas, 2000.
- Renteln, Alison Dundes. The Cultural Defense. New York: Oxford University Press, 2004.
Cases and Statutes Cited
- Employment Div., Dept. of Human Resources of Oregon v. Smith (II), 494 U.S. 872 (1990)
- Gonzales v. Centro Espirita Beneficiente Uniao do Vegetal, 389 F.3d 973 (10th Cir. 2004)
- Leary v. U.S., 383 F.2d 851 (5th Cir. 1967)
- Olsen v. Drug Enforcement Admin., 878 F.2d 1458 (D.C.C. 1989)
- People v. Woody, 394 P.2d 813 (Cal. 1964)
- Peyote Way Church of God, Inc., v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991)
- Reynolds v. U.S., 98 U.S. 145 (1878)
- State v. McBride, 955 P.2d 133 (Kan. 1998)
- U.S. v. Spears, 443 F.2d 895 (5th Cir. 1971)
- U.S. v. Warner, 595 F.Supp. 595 (D.C.N.D. 1984)
- American Indian Religious Freedom Act, P.L. 95-341 (92 Stat. 469, Aug. 11, 1978)
- American Indian Religious Freedom Act Amendments of 1994, P.L. 103-344 (108 Stat. 3125, Oct. 6, 1994)
- Religious Freedom Restoration Act, P.L. 103-141 (107 Stat 1488, Nov. 16, 1993)
- Special Exempt Persons: Native American Church, 21 C.F.R. 1307.31
See also Accommodation of Religion; Exemptions for Religion Contained in Regulatory Statutes; Free ExerciseClause Doctrine: Supreme Court Jurisprudence; Free Exercise Clause (I): History, Background Framing; Native Americans and Religious Liberty; War on Drugs